The National Labor Relations Board (“NLRB”) Comes Closer to a Quorum
Bayan Biazar, Associate
The National Labor Relations Board (“NLRB” or “Board”) is structured as a five-member body, but the National Labor Relations Act (“NLRA”) requires at least three Senate-confirmed members for the Board to exercise its full authority, including issuing decisions, resolving appeals, and setting binding precedent under federal labor law. For much of 2025, the Board has operated below that three-member quorum, leaving it unable to issue Board-level decisions even as regional offices and enforcement functions have remained active, effectively preventing the Board from carrying out its core adjudicatory role.[1] This dynamic is likely to shift in 2026, as the confirmation of pending nominees would restore the Board’s quorum and allow it to again issue binding decisions and provide long-awaited clarity to employers and employees.
What the Board Can and Cannot Do Without a Quorum
A lack of quorum does not mean the NLRB is inactive. Regional offices continue to investigate unfair labor practice charges, oversee representation elections, and issue complaints where warranted. Administrative law judges may still conduct hearings and issue recommendations. The General Counsel’s office continues to direct litigation strategy and enforcement priorities nationwide.
Without a quorum, however, the Board has been unable to issue final decisions. It has been unable to affirm, or reverse rulings made by administrative law judges, resolve contested legal questions, or clarify or revise precedent. This inability to act has created a backlog of cases awaiting action at the national level.
The Backlog
The backlog of unresolved cases is significant, has had lasting effects on both employers and employees, and has affected a wide range of employment and labor related disputes, including representation challenges and unfair labor practice cases that raise unsettled or fact-intensive issues.
For both employers and employees, without Board decisions, there is limited guidance on how existing standards are being applied, and no final resolution in disputes that would normally be concluded through the Board’s appellate process. Courts have been able to address certain issues, but judicial review is not a substitute for the Board’s role in administering and interpreting the NLRA.
Nominees to Restore a Quorum
Scott Mayer, current chief labor counsel at Boeing Co., was nominated to serve as a Board member for a term running through December 2029. He brings extensive experience advising employers on labor relations, collective bargaining, and compliance matters. James Murphy, a former career NLRB attorney who previously served as chief counsel to the Board’s acting chair, was also nominated, with a term extending through December 2027. Mr. Murphy brings significant institutional knowledge of the agency’s operations. In addition, Crystal Carey was nominated to serve as General Counsel of the NLRB.[2] If confirmed, the Board nominees would restore the three-member quorum[3] required for the NLRB to resume issuing decisions and begin addressing the backlog that has accumulated during the lapse.
Key Takeaways
As the NLRB moves closer to restoring a quorum, employers should be prepared for increased activity after a prolonged period of relative inactivity at the Board level. Long-pending cases may begin to move toward resolution, and new decisions may provide guidance that has been absent throughout much of 2025.
While the restoration of quorum does not by itself signal immediate changes to established precedent, it does mark the return of a functioning adjudicatory body capable of resolving disputes and clarifying obligations under the NLRA. Employers should continue to monitor developments, particularly if they have matters pending before the agency, and consider how renewed Board activity may affect compliance strategies and labor relations planning going forward.
[1] See https://www.rockymountainemployersblog.com/for prior posts on this Blog addressing the Board’s loss of quorum and related developments, published on March 13, 2025, April 3, 2025, April 10, 2025, and April 17, 2025.
[2] The NLRB’s General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.
[3] David Prouty is the only current active Board member of the NLRB and if Mr. Mayer and Mr. Murphy are confirmed, will together make up the three-member quorum.